IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA :

: CRIMINAL ACTION NO. 05-0038

v. :

: CIVIL ACTION NO. 13-4524

VERNON DOUGLAS :

SURRICK, J. DECEMBER 9 , 2014

MEMORANDUM

Presently before the Court is Defendant Vernon Douglas’s Motion for Discovery of the 

Identity and Other Information Pertaining to the Confidential Informant (ECF No. 154). For the 

following reasons, Defendant’s Motion will be denied.

I. BACKGROUND

On September 21, 2005, a jury found Defendant guilty of distribution of cocaine base 

(crack) in violation of 21 U.S.C. § 841(a)(1), possession of cocaine base in violation of 21 

U.S.C. § 844(a), possession with the intent to distribute cocaine in violation of 21 U.S.C. 

§ 841(a)(1), and possession of a firearm in furtherance of a drug trafficking crime in violation of 

18 U.S.C. § 924(c)(1). Defendant was also found guilty of possession of a firearm by a 

convicted felon in violation of 18 U.S.C. § 924(g)(1) in a stipulated non-jury trial. Defendant 

was ultimately sentenced to a total period of incarceration of 220 months to be followed by three 

years of supervised release. 

The verdict of the jury was based upon the following facts.1

 

On June 22, 2004, Police Officer Nathan London and a confidential informant 

went to Douglas’s home and conducted an undercover drug purchase. The 

1 These are the facts recited by the Third Circuit Court of Appeals in its opinion denying 

Defendant’s appeal. See United States v. Douglas, 476 F. App’x 967, 968-69 (3d Cir. 2012).

 

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confidential informant knocked on Douglas’s door, and when Douglas answered, 

the confidential informant asked for “four,” and gave Douglas a prerecorded $20 

bill. Douglas went into the house and returned with small objects. After the 

purchase, the confidential informant gave Officer London the four pink-tinted 

packets, which later testing revealed to be crack cocaine.

The next day, officers executed a search warrant on Douglas’s home. At the time 

of the search, Douglas was the only person in the house. Officers arrested 

Douglas and searched him, finding $306 cash, including the prerecorded $20 bill 

used as buy money the previous day. The officers searched the house. They 

found a triple beam scale, commonly used to weigh drugs, in the dining room. 

Inside a piano bench, they found a bag with a large amount of cocaine. In the 

living room, the officers found two pink-tinted packets containing crack cocaine 

in a magnetic Hide-a-Key attached to a tool box near the front door of the house. 

Officers found three guns, one inside the toolbox, another inside a vase in the 

living room, and a third in the bedroom. Officers also found Douglas’s social 

security card and driver’s license in the house.

Douglas, 476 F. App’x at 968-69.

On August 7, 2013, Defendant filed a pro se motion to vacate, set aside, or correct his 

sentence pursuant to 28 U.S.C. § 2255. (ECF No. 119.) Counsel was appointed to represent 

Defendant on March 21, 2014. Counsel filed an amended motion. On October 30, 2014, new 

counsel was appointed to represent Defendant. On October 30, 2014, the instant Motion for 

Discovery of the Identity and Other Information Pertaining to the Confidential Informant was 

filed by newly appointed counsel. (Def.’s Mot., ECF No. 154.)

In his § 2255 motion, Defendant argues that Government witnesses “presented false 

evidence that Defendant sold drugs to a confidential informant.” (Id. at 2.) Defendant contends 

that the confidential informant can testify that Defendant did not sell drugs to the confidential 

informant on the day in question and that trial counsel was ineffective in failing to get the 

identity of the confidential informant. (Id. at 3.) Defendant now seeks discovery regarding the 

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identity of the confidential informant, as well as other details about the confidential informant.2

 

II. LEGAL STANDARD

The Government has the right to withhold the identity of a confidential informant, with 

certain exceptions. Rovario v. United States, 353 U.S. 53, 59 (1957). Recognizing that the 

privilege is limited by “fundamental requirements of fairness,” id. at 60, the Supreme Court has 

stated that “[w]here the disclosure of an informer’s identity, or of the contents of his 

communication, is relevant and helpful to the defense of an accused, or is essential to a fair 

determination of a cause, the privilege must give way.” Id. at 60-61. 

“[T]here is no fixed rule as to when disclosure is required.” United States v. Jiles, 658 

F.2d 194, 196 (3d Cir. 1981). “[O]nce a defendant sets forth a specific need for disclosure the 

court should balance ‘the public interest in protecting the flow of information against the 

individual’s right to prepare his defense.’” Id. (quoting Rovario, 353 U.S. at 62). The defendant 

bears the burden of demonstrating the need for disclosure. United States v. Johnson, 677 F.3d 

138, 143 (3d Cir. 2012). 

III. DISCUSSION

The first step in determining whether disclosure of a confidential informant’s identity is 

necessary “is to ascertain what need, if any, the defendant has alleged for disclosure.” Jiles, 658 

F.2d at 197. Defendant contends that “[t]he identity of the confidential informant is central to 

proving the claims in Defendant’s 2255 Motion,” because “[t]he confidential informant is the 

only person who could impeach the testimony of the police officers regarding the alleged 

controlled buy.” (Def.’s Mot. 3.) This is not sufficient.

2 We note that there is an indication in the filings of both Defendant and the Government 

that the confidential informant here may be dead. However, the Government has been unable as 

of this time to confirm that fact.

3

 

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In Jiles, the Third Circuit recognized that “[t]he mere speculation that an eyewitness may 

have some evidence helpful to [a] defendant’s case is not sufficient to show the specific need 

required by Roviaro.” Jiles, 658 F.2d at 197. Defendant’s argument is nothing more than 

speculation that the confidential informant would contradict the testimony of Officer London, 

who was standing next to the informant during the controlled buy. (Sept. 19 Trial Tr. at 34-35

(on file with Court).) This is not a case in which the confidential informant was the sole 

eyewitness to the crime. Cf. Rovario, 353 U.S. at 64 (noting that the defendant and confidential 

informant “were alone and unobserved during the crucial occurrence for which he was 

indicted”). Officer London was standing next to the confidential informant during the controlled 

buy and testified that it was Defendant who sold the drugs to the confidential informant. 

Moreover, Officer London had provided the confidential informant with a prerecorded twentydollar bill to use for the buy. When officers executed the search warrant at Defendant’s 

residence the next day, Defendant had the prerecorded bill in his pocket. (Sept. 19 Trial Tr. at 

34-35; 42-44.)

The Third Circuit’s recent opinion in Johnson, 677 F.3d at 143, is directly on point. The 

court in Johnson found that the district court was “well within its discretion in denying [the 

defendant’s] motion” to disclose the identity of a confidential informant who had participated in 

a controlled drug purchase. In Johnson, a police officer was in the parking lot at Home Depot 

with the confidential informant at the time of the controlled purchase. Id. at 140. The Court of 

Appeals concluded that, “[t]hough the confidential informant was an eyewitness to the two drug 

transactions, [the Defendant’s] suggestion that his testimony would support a mistaken-identity 

defense is speculative because Officer Fahy, who was present at both buys, positively identified 

[the defendant].” Id. at 143.

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As in Johnson, Defendant’s speculation that the confidential informant’s testimony 

would contradict Officer London’s testimony fails to demonstrate that disclosure would be 

“relevant and helpful to the defense of an accused, or . . . essential to a fair determination of a 

cause.” Rovario, 353 U.S. at 60-61; see also United States v. Brenneman, 455 F.2d 809, 811 (3d 

Cir. 1972) (per curiam) (stating that the “[a]ppellant’s speculation that testimony or information 

from the informant might have been used to impeach or cross-examine Holly . . . does not 

persuade us” that disclosure of the informant’s identity would be helpful to the defense (footnote 

omitted)). Accordingly, disclosure of the confidential informant’s identity is not appropriate 

here.

IV. CONCLUSION

For the foregoing reasons, Defendant’s Motion for Discovery of the Identity and Other 

Information Pertaining to the Confidential Informant will be denied.

An appropriate Order follows.

BY THE COURT:

__________________________ 

R. BARCLAY SURRICK, J.

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